dissenting:
I respectfully dissent as to appellant’s double jeopardy claim. It is my belief that the government purposely bifurcated a single transaction to create multiple crimes and thus, multiple punishments. In the North Carolina case, appellant was tried for possession of cocaine with intent to distribute and distribution of cocaine arising out of the September 13, 1983 delivery of cocaine in North Carolina. In that trial the government introduced testimony and accompanying exhibits concerning a prior delivery of a cocaine sample that occurred in Tallahassee, Florida on August 25, 1983. It was this delivery of the sample that made up the offense for which the appellant was tried and convicted in Florida.1 In the North Carolina trial, appellant’s counsel objected to the introduction of this evidence on a variety of grounds.2 The North Carolina trial court in rejecting these arguments ruled that the delivery of the sample of cocaine on August 25 was in actuality part of the “res gestae” of the September 13, 1983 North Carolina transaction. The court’s actual words were:
I think that all this is part of the same transaction, whichever theory the Government is going to go on as to the two counts involved, the election to proceed with possession with intent to distribute or possession or distribution, whichever count, as I say, they elect, and I certainly think it was part of that transaction, even though it occurred down in Florida and, therefore, I will deny your motion on that.
Record, Vol. VII at p. 11.
At the Florida trial, which commenced several days after Smith was found guilty in North Carolina, defendant’s counsel realized the impact of this evidence and hastily prepared a motion to dismiss based on double jeopardy grounds. The court denied this motion relying on United States v. McDonald, 692 F.2d 376 (5th Cir.1982).3 The Florida trial court said, “[i]f the defendant distributed cocaine in Florida, this is a separate and distinct act from the distribution of cocaine in North Carolina.” The double jeopardy clause of the Fifth Amendment provides that “nor shall any *1171person be subject for the same offense to be twice put in jeopardy.” It is the purpose of this clause to render criminal proceedings conclusive and binding. In Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) the court stated:
The “twice put in jeopardy” language of the Constitution thus relates to a potential, i.e. the risk that an accused for a second time will be convicted of the “same offense” for which he was initially tried.
398 U.S. at 326, 90 S.Ct. at 1759.
In determining whether a second prosecution is barred by double jeopardy, courts usually apply what has become known as the Blockburger test, i.e., where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). However, in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) the court said:
The Blockburger test is not the only standard for determining whether successive prosecutions involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.
432 U.S. at 167 n. 6, 97 S.Ct. at 2226 n. 6, 53 L.Ed.2d at 195 n. 6. This is to protect the defendant from having to “run the gauntlet a second time.” Id. Since 1889 it has been the constitutional rule in this country that:
“where ... a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.”
In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118 (1889). In this case this is exactly what happened. The appellant faced the same factual issues in both North Carolina and Florida. This was due, however, not to any fault of the appellant but rather to the government’s manipulation of the evidence to create two separate crimes from the same transaction.
Additionally, as to the statutory double jeopardy claim, the court’s reliance on McDonald, supra was misplaced. McDonald is easily distinguishable from the case at bar.4 In McDonald the defendant attempted to convince the court that he could not be charged with two deliveries of quaaludes in the same indictment and given consecutive sentences. He had delivered 53,775 quaaludes to an undercover agent on one date. Four days later, a eo-conspirator, at McDonald’s direction, delivered 212,011 quaaludes to an undercover agent. These separate deliveries were charged in two separate counts of the indictment. McDonald attacked this on the basis of double jeopardy claiming that they were part of the same transaction. The court found no double jeopardy problem.
This case, however, involves two separate prosecutions, generally a prerequisite for a double jeopardy claim, Webb v. Hut-to, 720 F.2d 375 (4th Cir.1983). Furthermore, the first transfer in this case was the sample of narcotics constituting 1.2 grams. The second transfer was the narcotics bargained for at the time of delivery of the sample. This is a wholly different situation than that which faced the court in McDonald,5
*1172The statutes in question, 21 U.S.C. § 841(a)(1), 21 U.S.C. § 802(8)(11) do define distribution as a delivery or an “actual, construction, or attempted transfer of a controlled substance.” Yet, as the majority concedes, we interpret statutes presuming that Congress would not allow the government to manipulate the charges against a person so as to obtain multiple punishments for what is in essence the same offense. Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980). Again, this is exactly what happened here.
The trial court’s finding in the North Carolina trial underscores this conclusion. In that trial the court found that the delivery of the sample and the delivery of the bargained for narcotics could not be bifurcated, i.e. that it was all “part of that transaction, even though it occurred down in Florida.” The government cannot claim that there were two acts for the purpose of one trial and then turn around and claim that the acts are distinct for the purposes of another.
It may well be that the government over-tried its case in the North Carolina prosecution. However, it is the government that has the access to the testimony it will use at whichever trial it chooses. It did not have to introduce the evidence, testimony, and exhibits of the sample delivery in Florida in the North Carolina prosecution. However, once that tactical decision had been made, the government could not ignore that decision and reverse the strategy to artificially create a second offense against the defendant. In this case this resulted in the manipulation of the evidence and thus the courts to create two crimes, two convictions and multiple sentences.
. In the Florida trial appellant was not tried for possession of cocaine with intent to distribute or with distribution of cocaine on or about September 13, 1983.
. Trial counsel objected on the grounds that the evidence was: (1) beyond the scope of the indictment; (2) did not meet the admissibility requirements for a prior act under F.R.E. 404(b); (3) that the defendant had not been afforded a hearing under United States v. Beechum, 582 F.2d 898 (5th Cir.1978) cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979); and that the evidence was inadmissible pursuant to F.R.E. 403.
. Appellant’s claims are highlighted by looking at the overlap of the evidence submitted by the government in the two trials.
Fla. Exh. No. N.C. Exh. No. , Description
6 1 1 gram sample of cocaine
8 2 3 foil-wrapped packages of cocaine
8 4 American Tourister suitcase containing 10 kilograms of cocaine
9 & 9(a) 5(a) — (d) Photos of suitcase containing cocaine
Fla. Exh. No. N.C. Exh. No. Description
5 6 8/25/83 video tape showing transfer of sample
7 7 9/7/83 video tape of meeting between appellant and S.A. Glavin
8(a) & (b) 9/13/83 telephone tape recording
9 Transcript of 9/13/83 telephone recording
11 8/9/83 telephone recording
12 Transcript of 8/9/83 telephone tape recording
The one gram sample was marked for identification and submitted to defendant’s counsel as a government proposed exhibit but was not actually moved into evidence in North Carolina. Furthermore, the government used the same witness, Agent Howard Glavin to introduce the exhibits at both trials. He was the only witness *1171who could testify as to the transactions and conversation with the appellant.
. It should be noted that McDonald is not binding precedent in this circuit.
. Furthermore, in McDonald, the court was concerned that drug offenders would be subject to but one conviction no matter how many deliveries or the quantity of those deliveries as long as the actions were motivated by a single financial plan. 692 F.2d at 380. This concern is not relevant in this case. The delivery of a sample is different than periodic deliveries of large quantities of drugs.